Suppose first that you own the property to some degree. To start, you can make sure that your ownership is properly recorded in whatever system your country and your land market requires. You might be able to purchase mineral rights from whomever owns them. You might be able to acquire different zoning from the public sector. You might be able to extinguish the rights of others by getting quitclaim deeds from them. You can mortgage the property which may give you some flexibility regarding financing some crops but which will probably constrain you as to what you can do with structures or orchards (e.g., can you demolish them?).

On the other hand, suppose that you rent the property. You might be able to negotiate a different (longer?) term lease. There are all sorts of other contract terms that you can possibly renegotiate. You can negotiate what the conditions are for getting you from one lease to the next. What happens if there is a public sector taking (e.g., who is to be compensated and in what proportion?)? Is it possible for the land owner to move you to another property . . . if so, under what conditions. You can negotiate to try to make those conditions less onerous.

Hi Peter,

Your starting assumptions do not apply in many African countries including my current country of residence. My query is irrelevant for contemporary OECD countries including the USA and my country of permanent residency.

I suggest you research studies on http://www.lincolninst.edu/ 

I hope it helps.

Best regards.

Thanks for wonderful reference, Claudia

Hello Mr Van Gils,

Nathaniel Burney, the author & illustrator of 'The Illustrated Guide to Law' contributed the following to the question at hand:

"That said, my understanding is that in these countries there is a move towards more secure private ownership of land, which many feel is essential for the development of a market economy. Almost every variable in a market economy -- from credit to crops to assets to industry -- ultimately depends on control of natural resources. So it is critical for a country to have clear rules about who has the right to use land, what purposes they can use it for, and exclusivity. And it is critical that these rules be consistent, and that they be enforced consistently, so that people can rely on them and plan accordingly.

The rules themselves have been evolving for a long time in these countries, as more people have moved to urban areas and as their economies have shifted from traditional rural communities to urban cities and industry.

Avoiding "tragedy of the commons" situations is one issue. Another big one is ensuring that the land is owned in such a way that it can be managed usefully and productively -- for example, a farmer must be able to own enough land at a minimum to grow enough food for his family to live on. Formal registration and titling rules ensure that there is no doubt about who can do what, but customary systems can also be effective. The important thing is that the rules are clear and strong. Weak rules lead to uncertainty and conflict. The rules in many of these countries are often outdated, confusing, irrelevant to modern realities, and even conflicting. This is still an area that is evolving.

A big focus lately, I understand, has been ensuring that the rules are enforced. In some countries, the government does not effectively administer much of the territory, and so the rule of law is weak. In some countries, a culture of corruption exists where government officials only do their job if bribed, or will not do their job if bribed not to do it, and so again the rule of law is weak. When people cannot expect that the rules will be obeyed and enforced, there is very little incentive to invest in development of resources. The reality that someone else with more money or power could take it away or undermine it is an enormous disincentive to invest in anything significant. Weakened rule of law is arguably the single largest obstacle to social and economic development. The trick is to build governments that actually have authority over their entire territory, and to get rid of the culture of bribery -- both enormous tasks, but crucial.

Higher economic growth is also strongly tied to equality of opportunity to own land, and to buy and sell land rights. If only a handful of people -- or just the government itself -- owns the right to use land and its resources, the result is usually poverty and a highly inefficient market. The ideal is a wide distribution of land ownership, a free marketplace for the buying and selling of land rights, and a government that prevents bullying and lets people make their own buying and selling choices.

This is never more apparent than with the rural poor, who "hold" land but may not have any enforced legal rights to it, thereby keeping them in poverty. Giving them the ability to own the land they hold is the biggest factor in getting them out of poverty, and making their land use both more productive. It also reduces conflicts, improves investment, and makes the country as a whole better suited for a market economy. In other words, upgrading their land tenure rights is possibly one of the most important things a country can do to secure its economy, its food supply, and its people.

For example, people who merely use the land they farm need to be able to gain a legal property interest in that land. They need to be able to have that property interest for a meaningful period of time. They need to be able to upgrade from users to owners. If someone else owns the rights to the resources on the land, the landowner must be able to upgrade by buying those rights. And they need to be able to acquire interests in enough land to be able to farm it effectively.

This doesn't have to be individual ownership, either -- it can be community ownership. In fact, a larger, organized unit can be a much more effective manager of resources while better ensuring the benefits to its members.

There are often already customary or family rules in place that govern who can use what, when they can use it, and in what way. The rules don't need to be legal regulations. What is important is that they exist, are enforced, and allow people to have control over land and engage in land-rights transactions. Weak rules, weak enforcement, and inequality of opportunity are the big problems. Other problems arise when people want to re-settle traditional lands that were lost in conflicts."

Mohamed, your quote includes a statement about the need for an opportunity to upgrade agricultural user rights to full ownership of the parcel. And my example was in essence just such an upgrade, although very old. I am looking for a recent, concrete example for quite some time already in various countries. In vain. Burney and I agree on the desirability of a legal and practical provision to obtain such a tenure upgrade.

As your quote refers to commons (and you are in Austria), you may appreciate a provision for upgradable tenure in rural commons as well. We present a case, although in other words, for just that in the attached for both alpine and Namibian commons. 

Article The living commons of West Tyrol, Austria: Lessons for land ...

I think this is an interesting and important but also difficult issue. If upgrading is left to the individual ability and willingness to upgrade tenure rights, the outcome may be an unlevel playing field where the poor and vulnerable risk to lose as they may not be able to benefit. Many tenure reforms have had such an outcome with elite capture and increased tenure insecurity for the poor. Classical land titling upon demand has therefore not worked well in many cases in Africa. The cost was too high for most poor people to afford to get a title.

 Low-cost methods may be an option and new technologies provide new opportunities for affordable formalization that can be within reach for poor people. Ethiopia's land registration and certification program is a good example. First they used traditional low-cost methods (without computers and advanced equipment) which has been very successful due to very low cost, scalability, high local demand and participation. Now they are piloting a second-stage certification with more modern equipment where satelite imagery contribute to much lower costs. Such mapping of private as well as communal borders may be helpful many places. Although they are no guarantee against corrupt practices.

Although I expect to get shot down on this post . . . as before, I will share what I know about acquiring ownership rights to real property. There are two basic approaches: (1) Torrens, which is a government guarantee system and which has various names in various parts of the world and (2) title insurance, which is a private market system and which is broadly available in the United States. One of the few places I know about where both systems were available at the same time is Chicago. The Torrens system no longer exists there, because it ultimately could not compete . . . lags in titles became too great. The market would not tolerate the bureaucratic delays.

Where Torrens becomes too expensive and too inconvenient (like travelling to another city) and too time consuming (like having to wait a month or more) and too corrupt (as in having to bribe bureaucrats) to get them to move on an application, then there may be an opportunity to introduce private title insurance. The insurance fund would be there to do battle with an intractable bureaucracy. 

What would be the nature of the insurance in the context of a country with Torrens? Well, you would be insuring against being unable to get the title from the government-run Torrens system.

Peter, I think your comment is interesting. To some extent customary systems may serve as Insurance of land rights in the African context where you also have Torrens type of land rights introduced by the state. It varies to what extent the statutory system recognizes custormary rights or integrates them in the statutory land rights. Land conflict resolution systems also vary a lot and may be seen as part of a land rights Insurance system. Informal conflict mediation may take place outside the formal system and can be a cost-effective and transparent way to handle local conflicts in some places while it is controlled by powerful chiefs other Places. I think there is a high level of  diversity and complexity in local tenure systems, some talk about a continuum of land rights.

Regarding the issue of upgrading of land rights, attempts have been made to make local conflict resolution systems more transparent by establishing local committees with secretaries to handle disputes, such as in Malawi where chiefs have resisted the reform because they would lose power. In Ethiopia there has also been attempts at formalizing the informal local land conflict mediation system by establishing local land courts instead of relying on local conflict mediators to handle such disputes.

Through my students, I am aware  of the referred Ethiopian case. However, evidence or reference for a functional up-gradable rural land title seems to lack. 

On the topic of conflict resolution, the Communal Land Boards (CLB) in Botswana are the most effective I have come across; the Namibian CLB, modeled on the Botswana experience has not yet achieved the same efficacy. 

If it is a model for endogenous "upgrading" you have in mind most common property regimes may have this opportunity based on local collective action and Cooperation. If you have a formal "upgrading" in mind that is voluntary, the titling upon demand is the classical expensive option that also has other drawbacks as I already discussed above. Provision of "Customary Land Titles" to groups of owners is a way to build customary rights into the formal tenure system and is facilitiated in some countries. What Rwanda is now doing is a modern low-cost land registration and titling which represents a substantial upgrading at a broad scale and at a low cost.

I still consider the First stage land registration and certification in Ethiopia as an extremely cost-effective upgrading of the land rights in that country. The joint land certification of husbands and wives in some regions of Ethiopia is also now evaluated and found to have substantially strengthened wives' land rights within familities. I would also consider that as a functional upgrade of land rights.

Thank you Dr Van Gils for the referenced article.

Previously, I had some interesting experiences as an environmental Surveyor & Marine Mammal Observer in The Middle East. In comically stark contrast to 'Island Mentality' of Bahrain (where I grew up), we now live in Austria - where 'Mountain Locked Mentality' seems to be the dominant mode of thought.

I have seen first hand the effects of both unrequited estate development as well as claustrophobic social conformity.

Considering the enormity of the tasks involved in evaluating everything from migratory patterns & downstream River runoff to set up of electrical & infrastructure grids; Would I be naive in suggesting a land upgrade scheme which allocates tenures based on past performances & demonstration of aptitude?

Maybe some system may be devised to support those who take on the responsibility of tending (& showing love) to the land? Proper land tending needs a lot of effort!

My wife gave me 'The Secrets of the Soil' to read - and though I find the writing to be a bit rushed - I feel a true appreciation for just how powerful good land tending can be. The question I feel this forum has me asking is How can we make it possible for people who can treat the land right to impart such devotion onto others? Could we leave them in charge of upgrading others' land rights? How would you even find/train suitable stewards? Should the shifting of vegetation play some role in defining boundaries? What rights should native flora & fauna have with respect to

Dear Mohammed, thanks for your eloquent narrative.

For me the crux of your story is the "we" in your Secrets of the Soil paragraph; hopefully, this does not imply the national state, democratic or autocratic. Our article argues, among others, that private-collective or public owners/custodians of commons at the local (authority) level do best.

Heya Doc,

I hope this message finds you well,

as part of our studies here,

my professor, Dr Barbara Ormsby - a process expert consultant by day,

introduced us to the concept of 'levels of complexity'; in which the levels of complexity within the informative introspective side (rights) needs be equally complex as that of the practice of land tending (tenures). So any decision need be looked at through the lenses of each factor which affects it (dimensions i.e. electric grid, naturally protected areas...).

In such cases as the one you outline in your study on Southern Austrian/Alpen farming communities, I expect complexities are weighed. In a place where the physical transport across sometimes rugged terrain requires a more locally active community, it makes sense to limit the decision chain to those more or less immediately affected by seasonal perbutations - events such as winter shut-ins here in Austria and seasonal consumer shifts such as en-masse cases in Mecca during Hadj. On a more administrative scale farmers here have learned through experience the value of matching the practicality of communal sharing of farm equipment to make the most of both the resources as well as their local surroundings.

If I may, 'upgrade' denotes understanding and improvement. In studying the progression within natural systems, Niklas & Spatz write in 'Plant Physics':

".. it is possible to optimize, but every rarely maximize, the performance of many tasks made simultaneously...".

Navi Radjou also mentions in his TED talk, that one of the key elements to make ideas like 'frugal innovation' work is a lateral, outward in distribution of responsibility. This is one way of lowering the levels of complexity which decision making bodies have to deal with.

So, in considering examples of upgradable tenure rights,

I would suggest an adaptive system which clearly identifies functions, then qualitatively surveys available sets of components, which interaction it would then periodically monitor in hopes of carving down networks uniquely suited to the specific environment. Ultimately, the upgrading would happen periodically as the levels of complexity are reduced by subsequent generations.

In my project, I just came across a case (n=4) of historical tenure upgrades from squatter at the common (1679), over leaseholder-for-life (1710) to inheritable smallholding (1750).

In Fiji, where most (around 90 percent) of the land belongs to clans (mataqali) challenges about tenure rights are complex and difficult. Another aspect is that today many of the older and bigger squatter settlement are located on prime locations. Some decades ago when these settlements were started they were in the periphery and on land nobody else wanted to use (e.g. in swampy areas, mangroves, etc.). As I said some of the settlements are today in prime locations, and government and investors want the squatter settlements either relocated or upgraded. One has to see how well these plans work out. Resettlement to the rim of the city might take the squatter population too far from their sources of livelihood. Upgrading might lead to processes of social selection, meaning that after the upgrade others live int he settlements than those who lived there before.